Com. v. Rhoden, M. ( 2019 )

J-A15028-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MALIK RHODEN :
:
Appellant : No. 3316 EDA 2017
Appeal from the Judgment of Sentence May 11, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012762-2014
BEFORE: BENDER, P.J.E., GANTMAN, P.J.E., and COLINS*, J.
MEMORANDUM BY GANTMAN, P.J.E.: FILED JULY 09, 2019
Appellant, Malik Rhoden, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his jury
trial conviction for conspiracy to commit murder.1 We affirm.
In its opinion, the trial court fully and correctly set forth the relevant
facts and procedural history of this case. Therefore, we have no reason to
restate them.
Appellant raises the following issues for our review:
WAS THE GUILTY VERDICT FOR CONSPIRACY TO COMMIT
MURDER AGAINST THE WEIGHT OF THE EVIDENCE AS THE
JURY FOUND APPELLANT NOT GUILTY OF ATTEMPTED
MURDER, AGGRAVATED ASSAULT AND ALL OTHER
CHARGES AND BECAUSE THE ONLY EVIDENCE TYING
APPELLANT TO THE SHOOTING CAME FROM CRIMINAL
WITNESSES WHO GAVE FALSE STATEMENTS TO POLICE
____________________________________________
1 18 Pa.C.S.A. § 903 (section 2502 related).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A15028-19
AND THEN LATER TESTIFIED THAT APPELLANT WAS NOT
THE SHOOTER?
WAS THE EVIDENCE INSUFFICIENT TO SUSTAIN THE
GUILTY VERDICT FOR CONSPIRACY TO COMMIT MURDER
AS THERE WAS INSUFFICIENT EVIDENCE THAT APPELLANT
AGREED WITH ANOTHER TO COMMIT MURDER, AND WAS
MERELY PRESENT IN THE BUICK LESABRE?
DID THE TRIAL COURT ERR BY ALLOWING INTO EVIDENCE
OTHER ACTS EVIDENCE THAT APPELLANT WAS A MEMBER
OF A GANG OR CREW, WHICH WAS SPECULATIVE AND
BASED ON APPELLANT’S COMING FROM A CERTAIN
NEIGHBORHOOD, AND THE EVIDENCE WAS UNFAIRLY
PREJUDICIAL TOWARD APPELLANT, WAS MISLEADING AND
CAUSED CONFUSION TO THE JURY?
(Appellant’s Brief at 7).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Donna M.
Woelpper, we conclude Appellant’s issues merit no relief. The trial court
opinion comprehensively discusses and properly disposes of the questions
presented. (See Trial Court Opinion, filed November 9, 2018, at 3-8) (finding:
(1) inconsistent verdicts are permissible so long as there is sufficient evidence
to sustain guilty verdict; Appellant was passenger in vehicle, together with
two others, when several shots were fired from vehicle at Victim; in his
statement to police, Victim identified Appellant as shooter; Victim’s statement
to police was corroborated by witness, who identified vehicle involved in
shooting; Victim’s prior inconsistent statement was admissible to rebut
Victim’s recantation at trial; jury was free to credit Victim’s prior statement to
police over his trial testimony; verdict did not shock one’s sense of justice;
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J-A15028-19
(2) circumstances of case provided sufficient evidence of conspiracy to sustain
Appellant’s conviction, where trial evidence showed Appellant was associated
with two others in vehicle, present at scene of shooting, and participated in
shooting; (3) evidence that neighborhood affiliations of Appellant and his
cohorts differed from Victim’s affiliation was relevant to show motive to shoot
Victim in retaliation for shooting of associate of Appellant and his cohorts that
occurred one day earlier; shooting in this case “grew out of” prior incident;
probative value of this evidence outweighed any prejudicial effect).
Accordingly, we affirm on the basis of the trial court’s opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/9/19
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COMMONWEALTH OF CP-51-CR-OO 12762-2014 · llft/
, *cr
PENNSYLVANIA
v.
SUPERIOR COURT
MALIK RHODEN 3316 EDA 2017
OPINION
,--- - ····-··- --- ···--·'
CP-51,CR-0012762·2014 Comm. v. Rhodeo, Malil< 1
Opinion
WOELPPER, J.' NOVEMBER 9, 2018
I
I IIIll Ill IIII I Ill IIll Ill
_81_88082451 ./·
I. PROCEDURAL&FACTUALBACKGROUND
On March 3, 2017, a jury convicted Malik Rhoden ("Defendant") of conspiracy to
commit murder. 1 Defendant appeals his judgment of sentence, challenging the weight and
sufficiency of the evidence, and an evidentiary ruling. His claims are meritless.
The victim in this case was Deion Tindel ("Tindel"). On May 29, 2012, while Tindel
stood on the comer of 201h and Parrish Streets, a tan Buick LeSabre pulled up to the stop sign.
Inside the vehicle were Defendant, Bysil Howzell, and Dante Brown. From the front passenger
window, Defendant fired several shots at Tindel. One bullet struck him in the left foot. Notes of
......
Testimony ("N.T."), 3/1/17 at 26, 99, 122.
On that date, Philadelphia police officers Steven Toner and Michael O'Brien were
patrolling the 22nd District in a marked police vehicle. At approximately 7:45 P.M., they heard
several gunshots. The officers drove in the direction of 20th and Parrish Streets located in the 9th
District. At the intersection of 20th and Ogden Streets, the officers came across the gunshot
victim, Tindel. They transported him to Hahnemann Hospital and remained with him until
relieved by 9th District police officers. N.T. 2/28/17 at 47-50.
Around the same time, Officers Mallard and Farrell received a radio call describing
multiple gunshots possibly involving three black males in a tan or gold Buick LeSabre. In the
area of 19th and Fairmount Streets, the officers observed a tan Buick LeSabre occupied by three
black males. The vehicle pulled to the side to allow an ambulance to go by. While pulled over,
the front seat passenger exited the vehicle and got into the driver's seat. The driver moved
across to the front passenger's seat. At this time, Defendant became the driver, the front seat
passenger was Bysil Howzell, and Dante Brown remained the rear passenger. The officers
secured the car and brought Jacqueline Simonet, a witness of the shooting, to identify the.
vehicle. N.T. 3/1/17 at 118-20, 122.
At 9:00 P.M., following his release from the hospital, officers brought Tindel to Central
Detective Division to give a statement. Tindel met with Detective Michael Rocks. In his
statement, Tindel identified Defendant as the male that shot him. He further stated that he had
known Defendant his entire life. Tindel also selected Defendant as the male that shot him from a
photo array presented by Detective Kerwin. Id at 213, 216-17. Tindel signed the statement.
After the jury found Defendant guilty of conspiracy to commit murder, this Court
deferred sentencing for completion of a presentence investigation. On May 9, 2017, defense
counsel filed a motion for a new trial. The Court denied Defendant's motion on May 11, 20 t 7
and sentenced him to six-and-one-half to thirteen years of incarceration.
On May 16, 2017, Defendant filed a Motion for Reconsideration of Sentence, which this
Court denied on September 12, 2017. Defendant filed a timely pro se notice of appeal on
October 6, 2017. Pursuant to the Court's l 925(b) order entered the same day, Defendant fiJed a
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pro se Statement of Errors Complained of on Appeal on October 30, 20 I 7. On February I 4,
2018, Defendant file a prose motion for new counsel. On March 12, 2018, the Superior Court
remanded the case for a Grazier Hearing. A Grazier Hearing was scheduled on April 13, 2018.
Defendant participated via teleconference. Trial counsel, Donald Chisholm, Esq., was vacate�
and new counsel was appointed. On April 18, 2018, court appointed counsel, Daniel Alvarez,
Esq., entered his appearance. On April 27, 2018, this Court entered its second l 925(b) order.
On May 6, 2018, counsel filed a Statement of Matters Complained of on Appeal.
IL DISCUSSION
A. Weight of the Evidence
Defendant's first claim is that the conspiracy to commit murder verdict was against the
weight of the evidence. A defendant is not entitled to a new trial based on a weight of the evidence
claim unless the verdict "is so contrary to the evidence as to shock one's sense of justice."
Commonwealth v. Diggs, 949 A.2d 873, 879 (Pa. 2008). Appellate review is limited to whether
the trial judge palpably abused its discretion in denying the appellant's motion for a new trial. Id.As such, a "trial court's denial of a motion for a new trial based on a weight of the evidence claim
is the least assailable of its rulings." Id. at 879-80.
Defendant first argues that the verdict was against the weight of the evidence because
"the jury found Appellant not guilty of attempted murder, aggravated assault and all other
charges].]" Statement of Errors, 11. Inconsistent verdicts "are allowed to stand so long as the
evidence is sufficient to support the conviction." Commonwealth v. Miller, 35 A.3d 1206, 1208
(Pa. 2012). Here, the evidence at trial was sufficient to sustain Defendant's conviction for
conspiracy to commit murder. Criminal conspiracy is defined as follows:
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A person is guilty of conspiracy with another person or persons to
commit a crime if with the intent of promoting or facilitating its
commission he:
(1) Agrees with such other person or persons that they or one or more
of them will engage in conduct which constitutes such crime or an
attempt or solicitation to commit such crime; or
(2) Agrees to aid such other person or persons in the planning or
commission of such crime or of an attempt or solicitation to commit
such crime.
18 Pa.C.S. § 903(a).
In addition, "[n]o person may be convicted of conspiracy to commit a crime unless an overt act
in pursuance of such conspiracy is alleged and proved to have been done by him or by a person
with whom he conspired." 18 Pa.C.S. § 903(e).
Defendant was a passenger in the vehicle along with fellow passenger, Dante Brown, and
driver, Bysil Howzell. N.T. 3/1/17 at 120-22. In his statement to police, Tindel described the
car involved in the shooting as a tan Buick LeSabre. He also stated that there were three black
males inside of the vehicle. Tindel first saw the car while he stood at 201h and Parrish Streets.
After exiting the comer store, he sa� the same vehicle reappear. At this time, several shots were
fired at Tindel from the vehicle. Tindel identified Defendant as the individual who shot him. Id.
at 26, 30. Police first observed the vehicle about five blocks from where the shooting reportedly
took place. Id. at 131-32.
Tindel's statement to police was corroborated by witness Jacqueline Simonet
("Simonet"). At the time of the shooting, Simonet lived at 201h and Parrish Streets. Sometime
between 7:45 and 8:00 P.M. on May 29, 2012, she observed a tan vehicle from which shots were
fired toward the comer of 20th and Parrish Streets. Police brought Simonet to the area of
Fairmount Street, between 19th and Uber Streets, where she identified the tan vehicle involved in
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. '
the shooting. Id. at 88-89, 91-92. This evidence was more than sufficient to sustain the
conspiracy conviction.
Defendant also argues that the verdict was against the weight of the evidence because
"the only evidence tying Appellant to the shooting came from criminal witnesses who gave false
statements to police and then later testified that Appellant was not the shooter." Statement of
Errors, 1 1. However, a court may "treat the prior inconsistent statements of witnesses-who
have testified at trial and were subject to cross-examination so that the finder-of-fact could hear
the witnesses' explanations for making the out-of-court statements, and for their trial
recantation-as sufficient evidence upon which a criminal conviction may properly rest].]"
Commonwealth v. Brown, 52 A.3d 1139, 1168 (Pa. 2012). The finder-of-fact may do so ifhe
could, "under the evidentiary circumstances of the case, reasonably credit those statements over
the witnesses' in-court recantations." Id
Here, the victim and a second witness, Hassan Polk, recanted their earlier signed
statements given to police. In his trial testimony, Tindel claimed to no longer recall the
questions asked by Detective Rocks or his own responses. N.T. 3/1/17 at 25. Rather, he stated
that Detective Rocks told him what to say. Id. Similarly, Polk testified at trial that he overheard
police discussing Defendant's case and "just came up with [his] own story." Id. at 147-48. The
jury had the opportunity to evaluate the reliability of both witnesses' prior inconsistent
statements and trial testimony, and to treat the prior inconsistent statements as substantive
evidence. See Commonwealth v. Baez, 759 A.2d 936, 940 (Pa. Super. 2000) (witness's signed
and adopted statement was admissible as both impeachment and substantive evidence, despite
witness's denial at trial of making the statement). After listening to both witnesses explain their
past statements, the jury then decided which account to credit.
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Because the verdict did not shock one's sense of justice, the Court did not abuse its
discretion when it denied Defendant's weight of the evidence claim.
B. Sufficiency of the Evidence
Defendant next claims that the evidence was insufficient to sustain the guilty verdict for
conspiracy to commit murder "as there was insufficient evidence that Appellant agreed with
another to commit murder, and was merely present in the Buick LeSabre." Statement of Errors,
12. On sufficiency review, all evidence is viewed in the light most favorable to the verdict
winner to determine whether "there is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt." Commonwealth v. Amidormi, 84 A.3d 736,
756 (Pa. Super. 2014), appeal denied, 95 A.3d 275 (Pa. 2014). The Commonwealth may meet
its burden "by means of wholly circumstantial evidence." Id. Finally, the reviewing court "may
not weigh the evidence and substitute [its]judgment for the fact-finder." Id.To convict Defendant of conspiracy to commit murder, the Commonwealth had to prove
Defendant entered into an agreement with another person to commit or aid in the murder, that he
acted with a shared criminal intent, and that an overt act was taken in furtherance of the
conspiracy. 18 Pa.C.S. § 903(a). The Commonwealth need not show an explicit or formal
agreement between Defendant and his co-conspirator. See Commonwealth v. Perez, 931 A.2d
703, 709 (Pa. Super. 2007) (agreement between co-conspirators can be inferred by totality of
circumstances). "Circumstances like an association between alleged conspirators, knowledge of
the commission of the crime, presence at the scene of the crime, and/or participation in the object
of the conspiracy, are relevant when taken together in context, but individually each is
insufficient to prove a conspiracy." Id As discussed above, the evidence at trial was sufficient
to sustain Defendant's conviction for conspiracy to commit murder.
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• I I •
C. Other Acts Evidence
Defendant's final claim is that this Court erred by allowing the Commonwealth to
introduce "other acts evidence that Appellant was a member of a gang or crew, which was
speculative and based on Appellant's coming from a certain neighborhood." Statement of
Errors, 13. In addition, "the evidence was unfairly prejudicial toward Appellant, was misleading
and caused confusion to the jury." Id.The admissibility of evidence is left to the trial court's sound discretion, and appellate
courts will not disturb such evidentiary rulings absent au abuse of that discretion.
Commonwealth v. Arrington, 86 A.3d 831, 842 (Pa. 2014). "[E]vidence of prior bad acts, while
generally not admissible to prove bad character or criminal propensity, is admissible when
proffered for some other relevantpurpose so long as the probative value outweighs the
prejudicial effect." Commonwealth v. Boczkowski, 846 A.2d 75, 88 (Pa. 2004) (internal citations
omitted). One such relevant purpose is to show motive. Commonwealth v. Melendez-Rodriguez,
856 A.2d 1278, 1283 (Pa. Super. 2004 ). In order to be relevant for the purpose of establishing
motive, the prior bad acts "must give sufficient ground to believe that the crime currently being
considered grew out of or was in any way caused by the prior set of facts and circumstances."
Id
The Court permitted the Commonwealth to introduce evidence of the neighborhood
affiliations of Defendant, the victim, and Defendant's former codefendants.2 At trial, Detective
Michael Livewell testified that he had nineteen years of experience as a police officer in the
Francisville neighborhood of Philadelphia's 9th District. He described the Francisville
neighborhood as being divided into highland and lowland sections. Detective Livewell testified
2 The Commonwealth filed its motion to admit other acts evidence on October I 4, 2015, more than a year before
trial. The Court granted the motion on February 28, 2017.
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that Defendant, along with former codefendants, Bysil Howzell and Dante Brown, were all
affiliated with lowland. The victim was affiliated with highland. N.T. 3/2/17 at 7, 13, 20, 24-
26. On May 28, 2012-the day before the shooting in this case-Robert Shabazz-Davis,
associated with highland, shot and killed Antwan Pack, a lowland affiliate. Id. at 22-23.
The Court found that this evidence was relevant to show Defendant's motive to shoot the
victim. The Court further found the probative value of the evidence outweighed any prejudicial
effect. Detective Livewell described these neighborhood affiliations based on nineteen years of
experience working in the Francisville section of Philadelphia. N.T. 3/2/17 at 7. The shooting of
an individual identified as a lowland affiliate by a highland affiliate only one day before the
shooting in this case provides a sufficient basis to believe that this crime "grew out of' the prior
incident, i.e., the shooting of a lowland affiliate. See Melendez-Rodriguez, supra.
III. CONCLUSION
For all of the reasons herein, Defendant's judgment of sentence should be affirmed.
BY THE COURT:
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• I • •
TN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRJMTNAL TRlAL DIVISION
COMMONWEALTH OF CP-51-CR-0012762-2014
PENNSYLVANIA
v.
SUPERIOR COURT
MALIK RHODEN 3316 EDA 2017
PROOF OF SERVICE
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I hereby certify that I am this ofNovember, 2018, serving the foregoing Opinion on the
persons indicated below:
By First Class Mail
Daniel A. Alvarez, Esq.
100 South Broad Street, Suite 1216
Philadelphia, PA 19 I IO
By Interoffice Mail
Lawrence Goode, Assistant District Attorney
Interim Supervisor, Appeals Unit
District Attorney's Office
Three South Penn Square
Philadelphia, PA 19107
Anna Dillon
Secretary to the Honorable Donna M. Woelpper
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